Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 1 of 39 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

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1 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 1 of 39 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ) JOHN DOE, ) ) Plaintiff, ) ) CIVIL ACTION NO. 3:16-CV v. ) ) WILLIAMS COLLEGE, ) Leave to file in excess of 20 pages ) granted on Dec. 16, Defendant. ) ) MEMORANDUM IN SUPPORT OF DEFENDANT S MOTION TO DISMISS December 22, 2016 Daryl J. Lapp (BBO No ) daryl.lapp@lockelord.com Elizabeth H. Kelly (BBO No ) liz.kelly@lockelord.com LOCKE LORD LLP 111 Huntington Avenue Boston, MA Counsel for Defendant

2 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 2 of 39 TABLE OF CONTENTS Page ARGUMENT... 1 I. COUNT I FAILS TO STATE A CLAIM UNDER TITLE IX A. There is No Private Right of Action for Violation of Title IX s Administrative Requirements and the College Did Not Violate Them in Any Event B. The Complaint Fails to Allege Any Evidence of Gender Bias Selective enforcement and disparate treatment Deliberate indifference Erroneous outcome... 6 II. COUNT II FAILS TO STATE A CLAIM FOR BREACH OF CONTRACT A. Doe Has Failed to Exhaust His Contractual Remedies B. The College Has Followed its Policies and Procedures There is no evidence of bias or disparate treatment College policy called for the investigation of Smith s complaint The College did not act with deliberate indifference The College did not breach any obligation relative to Doe s appeal in the plagiarism case The College did not violate the policy on hearing records Doe has no claim in relation to the College s policy on relationship abuse or the general guidelines of its Code of Conduct The College did not violate any policy by requesting that Doe not attend a dance team performance The College did not breach any obligation to provide transcripts The College did not breach any obligation of confidentiality The College did not violate any obligation relative to hiring the investigator or the investigator s report The College did not violate its policies concerning disclosure of the investigation report and the responses to it The panel applied the correct standards in determining whether Doe engaged in non-consensual sexual intercourse The College met its obligations with respect to an appeal The College did not retaliate or facilitate retaliation by adjudicating Smith s complaint i-

3 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 3 of 39 TABLE OF CONTENTS (continued) Page III. IV. C. The Proceedings Have Been Conducted with Basis Fairness D. The Hearing Panel s Decision Was Not Arbitrary and Capricious COUNT III FAILS TO STATE A CLAIM FOR BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING COUNT IV FAILS TO STATE A CLAIM FOR PROMISSORY ESTOPPEL AND RELIANCE V. COUNT V FAILS TO STATE A CLAIM UNDER M.G.L. C OR 93A VI. COUNT VI FAILS TO STATE A NEGLIGENCE CLAIM VII. VIII. IX. COUNT VII FAILS TO STATE A CLAIM BASED ON FUNDAMENTAL FAIRNESS COUNT VIII FAILS TO STATE A CLAIM UNDER THE MASSACHUSETTS CIVIL RIGHTS ACT COUNT IX FAILS TO STATE A CLAIM FOR ASSAULT, DEFAMATION AND INVASION OF PRIVACY X. COUNT X FAILS TO STATE A CLAIM FOR DECLARATORY JUDGMENT CONCLUSION ii-

4 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 4 of 39 TABLE OF AUTHORITIES Page(s) Federal Cases Armstrong v. Lamy, 938 F. Supp (D. Mass. 1996)...29 Ashcroft v. Iqbal, 129 S. Ct (2009)...1 Austin v. Univ. of Ore., No. 6:15-CV MC, 2016 WL (D. Or. Sept. 8, 2016)...6 Bleiler v. Coll. of the Holy Cross, No , 2013 WL (D. Mass. Aug. 26, 2013)...3, 25, 27 Brennan v. King, 139 F.3d 258 (1st Cir. 1998)...8 Brown v. Rhode Island, 511 F. App'x 4 (1st Cir. 2013)...30 Cloud v. Trs. of Boston Univ., 720 F.2d 721 (1st Cir. 1983)... passim Cohen v. Brown Univ., 991 F.2d 888 (1st Cir. 1993)...6 Dempsey v. Bucknell Univ., 76 F. Supp. 3d 565 (M.D. Pa. 2015), amended in part, No. 4:11-CV-1679, 2015 WL (M.D. Pa. Mar. 6, 2015), aff d, 834 F.3d 457 (3d Cir. 2016)...10 Dinu v. Pres. and Fellows of Harvard Coll., 56 F. Supp. 2d 129 (D. Mass. 1999)...7, 27 Doe v. Brandeis Univ., 177 F. Supp. 3d 561 (D. Mass 2016)...16, 21, 23, 24 Doe v. Brown Univ., 166 F. Supp. 3d 177 (D.R.I. 2016)...5, 25 Doe v. Brown Univ., No. CV S, 2016 WL , at *19-20 (D.R.I. Sept. 28, 2016)...21 Doe v. Case W. Reserve Univ., No. 1:14CV2044, 2015 WL (N.D. Ohio Sept. 16, 2015)...3, 4, 5 iii

5 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 5 of 39 Doe v. Columbia Univ., 831 F. 3d 46 (2d Cir. 2016)...6 Doe v. Cummins, No , 2016 WL (6th Cir. Dec. 6, 2016)...7 Doe v. Emerson Coll., No. CV FDS, 2015 WL (D. Mass. Dec. 23, 2015)...27 Doe v. Trs. of Boston Coll., No. 15-CV-10790, 2016 WL (D. Mass. Oct. 4, 2016)... passim Doe v. Univ. of Massachusetts-Amherst, No. CV MGM, 2015 WL (D. Mass. July 14, 2015)...3 Doe v. Univ. of the South, 687 F. Supp. 2d 744 (E.D. Tenn. 2009)...2, 18 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998)...2 Gomes v. Univ. of Maine Sys., 365 F. Supp. 2d 6 (D. Me. 2005)...21 Gonzaga Univ. v. Doe, 536 U.S. 273 (2002)...16 Gorman v. Univ. of Rhode Island, 837 F.2d 7 (1st Cir. 1988)...11 Govan v. Trs. of Boston Univ., 66 F. Supp. 2d 74 (D. Mass. 1999)...27 Guckenberger v. Boston Univ., 957 F. Supp. 306 (D. Mass. 1997)...7, 27 Haley v. Virginia Comm. Univ., 948 F. Supp. 573 (E.D. Va. 1996)...4 Havlik v. Johnson & Wales Univ., 509 F.3d 25 (1st Cir. 2007)...7, 24, 27 Ikpeazu v. Univ. of Nebraska, 775 F.2d 250 (8th Cir. 1985)...11 Keskinidis v. Univ. of Massachusetts Boston, 76 F. Supp. 3d 254 (D. Mass. 2014)...6 iv

6 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 6 of 39 Kiani v. Trs. of Boston Univ., No. 04 cv 11838, 2005 WL (D. Mass. Nov. 10, 2005)...7, 22, 23 King v. DePauw Univ., No. 2:14-CV-70-WTL-DKL, 2014 WL (S.D. Ind. Aug. 22, 2014)...4 Laney v. Farley, 501 F.3d 577 (6th Cir. 2007)...15 Lyons v. National Car Rental Systems, Inc., 30 F.3d 240 (1st Cir. 1994)...29 Mallory v. Ohio Univ., 76 F. App x 634 (6th Cir. 2003)...3 Mangla v. Brown Univ., 135 F.3d 80 (1st Cir. 1998)...27 Marshall v. Ohio Univ., No. 15-cv-775, 2015 WL (S.D. Ohio Mar. 13, 2015)...5 Marshall v. Ohio Univ., No. 2:15-cv-775, 2015 WL (S.D. Ohio Nov. 17, 2015)...4 Merlonghi v. United States, 620 F.3d 50 (1st Cir. 2010)...29, 30 Moore v. Regents of the Univ. of California, No. 15-CV RS, 2016 WL (N.D. Cal. May 23, 2016)...2 Rodi v. Southern New England School of Law, 389 F.3d 5 (1st Cir. 2004)...26 Russell v. Salve Regina Coll., 890 F.2d 484 (1st Cir. 1989), rev d on other grounds, 499 U.S. 225 (1991), reinstated on remand, 938 F.2d 315 (1st Cir. 1991)...27 Sahm v. Miami Univ., 110 F. Supp. 3d 774 (S.D. Ohio 2015)...4 Salus v. Nevada ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., No. 2:10-CV GMN, 2011 WL (D. Nev. Oct. 10, 2011)...28 Thornton v. Harvard Univ., 2 F. Supp. 2d 89 (D. Mass. 1998)...25, 27 Treadwell v. John Hancock Mut. Life Ins. Co., 666 F. Supp. 278 (D. Mass. 1987)...27 v

7 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 7 of 39 Trent Partners & Assocs. Inc. v. Digital Equip. Corp., 120 F. Supp. 2d 84 (D. Mass. 1999)...25 Trs. of Boston Univ. v. ASM Commc ns, Inc., 33 F. Supp. 2d 66 (D. Mass. 1998)...25 Walker v. Pres. & Fellows of Harvard Coll., 840 F.3d 57 (1st Cir. 2016)...9 Young v. Wells Fargo Bank, N.A., 717 F.3d 224, (1st Cir. 2013)...24 Yu v. Vassar Coll., 97 F. Supp. 3d 448 (S.D.N.Y. 2015)...18, 28 Yusuf v. Vassar Coll., 35 F.3d 709 (2d Cir. 1994)...3, 6 State Cases Bash v. Clark Univ., No A, 2006 WL (Mass. Super. Ct. Nov. 20, 2006)...27, 28 Berkowitz v. Pres. & Fellows of Harvard Coll., 58 Mass. App. Ct. 262, 789 N.E.2d 575 (2003)...9, 28 City of Cambridge v. Civil Serv. Comm n, 43 Mass. App. Ct. 300, 682 N.E.2d 923 (1997)...24 Coveney v. Pres. & Trs. of Holy Cross Coll., 388 Mass. 16, 445 N.E.2d 136 (1983)... passim Driscoll v. Bd. of Trs. of Milton Acad., 70 Mass. App. Ct. 285, 873 N.E.2d 1177 (2007)...22, 28 Erickson v. Tsutsumi, No. CA B, 2000 WL (Mass. Super. Ct. May 17, 2000)...27 Foster v. Loft, Inc., 26 Mass. App. Ct. 289, 526 N.E.2d 1309 (1988)...28 Glovsky v. Roche Bros. Supermarkets, 469 Mass. 752, 17 N.E.3d 1026 (2014)...29 Lingis v. Waisbren, 75 Mass. App. Ct. 464, 468, 914 N.E.2d 976, (2009) Linkage Corp. v. Trs. of Boston Univ., 425 Mass. 1, 25, 679 N.E.2d 191, 208 (1997)...25 vi

8 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 8 of 39 Morris v. Brandeis Univ., No. 01-P-1673, 60 Mass. App. Ct. 1119, 2004 WL (Mass. App. Ct. Feb. 27, 2004)...22 Mullins v. Pine Manor Coll., 389 Mass. 47, 449 N.E.2d 331 (1983)...27 Nicholas B. v. School Comm. of Worcester, 412 Mass. 20, 587 N.E.2d 211 (1992)...28 Schaer v. Brandeis Univ., 432 Mass. 474, 735 N.E.2d 373 (2000)... passim Shin v. Mass. Inst. of Tech., No , 2005 WL (Mass. Super. June 27, 2005)...25 Sullivan v. Boston Architectural Ctr., Inc., 57 Mass. App. Ct. 771, 786 N.E.2d 419 (2003)...25 Sullivan v. Boston Architectural Ctr., Inc., No C, 2000 WL (Mass. Super. Ct. April 3, 2000)...28 Federal Statutes 20 U.S.C. 1232g(a) U.S.C Federal Regulations 34 C.F.R C.F.R (b)...1, 2, 26 State Statutes G.L. c. 93A, 9(3)...26 M.G.L. c H...29 M.G.L. c , 26 Other Authorities Black s Law Dictionary...17 Dept. of Educ., Office For Civil Rights, Dear Colleague Letter dated April 4, 2011, available at pdf;...1 vii

9 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 9 of 39 Dept. of Educ., Office For Civil Rights, Questions and Answers on title IX and Sexual Violence, dated April 29, 2014, available at Dept. of Educ., Office For Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students By Schools Employees, Other Students, or Third Parties, dated January 19, 2001, available at viii

10 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 10 of 39 ARGUMENT Defendant Williams College submits this Memorandum in support of its motion to dismiss the Complaint for failure to state a claim upon which relief can be granted. For the limited purpose of its Motion to Dismiss, the College accepts as true the non-conclusory, factual allegations of the Complaint. See Ashcroft v. Iqbal, 129 S. Ct. 1937, (2009). I. COUNT I FAILS TO STATE A CLAIM UNDER TITLE IX. In Count I of the Complaint, plaintiff John Doe asserts that the College violated Title IX of the Education Amendments of 1972, 20 U.S.C , in connection with his disciplinary case in two respects: (1) the College allegedly failed to comply with the Department of Education s administrative requirements for investigating and adjudicating complaints of student sexual misconduct and (2) his case was unfairly influenced by an anti-male bias. Compl , 210. Title IX provides that [n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. 1681(a). It is undisputed that Title IX applies to Williams as a recipient of federal funds. Pursuant to Title IX, the Department of Education has adopted formal regulations and issued various forms of sub-regulatory guidance for the handling of sexual harassment and sexual violence complaints at educational institutions. 1 Sexual harassment and sexual violence constitute prohibited discrimination on the basis of sex when they create a hostile environment which interferes with a 1 See, e.g., 34 C.F.R (b); Dept. of Educ., Office For Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students By Schools Employees, Other Students, or Third Parties, dated January 19, 2001, available at Dept. of Educ., Office For Civil Rights, Dear Colleague Letter dated April 4, 2011, available at pdf; Dept. of Educ., Office For Civil Rights, Questions and Answers on title IX and Sexual Violence, dated April 29, 2014, available at 1

11 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 11 of 39 person s ability to participate in an educational program or activity. See Dear Colleague Letter at p. 3. A. There is No Private Right of Action for Violation of Title IX s Administrative Requirements and the College Did Not Violate Them in Any Event. Doe s claim that the College failed to comply with the Department s administrative requirements for addressing complaints of sexual misconduct fails because there is no private right of action for an alleged violation of those requirements. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, , (1998); Moore v. Regents of the Univ. of California, No. 15-CV RS, 2016 WL , at *5 (N.D. Cal. May 23, 2016); Doe v. Univ. of the South, 687 F. Supp. 2d 744, 758 (E.D. Tenn. 2009). The College did not violate the Department s regulations in any event. The regulations require in relevant part that the College adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints of sexual misconduct. 34 C.F.R (b). The College s procedures do just that. See Sexual Misconduct Policy (Dkt. No. 1-11) at And, as further discussed below, the College followed its procedures in this case. 2 B. The Complaint Fails to Allege Any Evidence of Gender Bias. Doe s assertion that the College violated Title IX because the disciplinary proceedings were influenced by anti-male bias also fails to state a claim. Doe contends that gender bias against male students accused of sexual assault has resulted in selective enforcement of the College s policies against sexual misconduct, disparate treatment of males accused of such misconduct, deliberate indifference to his claim of harassment against Smith, and an erroneous outcome in his case. Compl. 21, 77, 205, 214. Doe s Complaint, however, fails 2 The College also complied with the Department s sub-regulatory guidance, which also does not give rise to any private right of action. See Moore v. Regents of the Univ. of California, 2016 WL , at *5 (citing letter from OCR to Senator James Lankford). 2

12 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 12 of 39 to allege facts sufficient to support a finding of gender bias on any of those theories. 1. Selective enforcement and disparate treatment The College s policies which prohibit sexual misconduct and provide a grievance process for addressing claims of misconduct make no distinction based upon the gender of the complainant or that of the respondent. See Code of Conduct and Sexual Misconduct Policy (Dkt. No. 1-11). Accordingly, to make out a claim of selective enforcement or disparate treatment, Doe would have to allege and prove that regardless of his actual guilt or innocence, the decision to initiate a disciplinary proceeding or the severity of the penalty was affected by [his] gender. Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994). 3 To do that, Doe must demonstrate that a female was in circumstances sufficiently similar to [his] and was treated more favorably by the University. Mallory v. Ohio Univ., 76 F. App x 634, 641 (6th Cir. 2003); see also Doe v. Case W. Reserve Univ., No. 1:14CV2044, 2015 WL , at *6 (N.D. Ohio Sept. 16, 2015) (plaintiff has the burden to identify a comparator of the opposite sex who was treated more favorably by the educational institution when facing similar disciplinary charges ). Doe fails to allege any such facts. His Complaint fails to identify any case in which a female student accused of similar misconduct either was not subjected to disciplinary proceedings at all or received a lesser sanction than Doe did notwithstanding a similar history of prior conduct violations. Doe alleges that female students and employees rarely (if ever) face charges of sexual misconduct at Williams. Compl That fact standing alone, assuming its truth, evidences no gender bias on the part of the College, but instead is merely a product of the complaints that 3 The First Circuit has not yet addressed a Title IX claim in the context of student disciplinary proceedings. Three District Court cases in this Circuit have done so, all following the Second Circuit s rationale in Yusuf. Doe v. Trs. of Boston Coll., No. 15-CV-10790, 2016 WL , at *24 (D. Mass. Oct. 4, 2016); Doe v. Univ. of Massachusetts- Amherst, No. CV MGM, 2015 WL , at *8 (D. Mass. July 14, 2015); Bleiler v. Coll. of the Holy Cross, No , 2013 WL , at *5 (D. Mass. Aug. 26, 2013). 3

13 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 13 of 39 the College receives. See Doe v. Case W. Reserve Univ., 2015 WL , at *6. Doe would have to allege specific instances in which the College actually received similar complaints of sexual misconduct against women but decided not to pursue them, which he does not do. Doe also alleges that males invariably lose when accused of sexual harassment at the College, Compl. 222, but he cites no specific facts to support this conclusory allegation, much less any facts sufficient to support the inference that males lose because of their gender rather than lose because the complaints of harassment had merit. See Doe v. Cummins, No , 2016 WL , at *14 (6th Cir. Dec. 6, 2016) (male student s allegations that in all nine cases of alleged sexual assault since 2011 the accused student was male and was found responsible failed to state a claim of gender bias). Moreover, Doe s claim that accusations of sexual misconduct generally are made against men and that the men accused of such misconduct invariably lose might suggest a bias in favor of sexual assault victims and against accused students, but says nothing about gender. King v. DePauw Univ., No. 2:14-CV-70-WTL-DKL, 2014 WL , at *10 (S.D. Ind. Aug. 22, 2014); accord Doe v. Trs. of Boston Coll., No. 15-CV-10790, 2016 WL , at *25 (D. Mass. Oct. 4, 2016) ( Showing that a school favors alleged victims of sexual assault claims is not the equivalent of demonstrating bias against male students, even if accused students are generally male. ); see also Sahm v. Miami Univ., 110 F. Supp. 3d 774, 778 (S.D. Ohio 2015); Marshall v. Ohio Univ., No. 2:15-cv-775, 2015 WL , at *8 (S.D. Ohio Nov. 17, 2015); Haley v. Virginia Comm. Univ., 948 F. Supp. 573, 579 (E.D. Va. 1996). Doe s allegation that Smith was treated more favorably then he was in the proceedings at issue also does not suffice. Any allegedly favorable treatment of Smith as the complainant against Doe is irrelevant, as the complainant obviously is not a comparator vis-a-vis the 4

14 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 14 of 39 respondent. Doe v. Case W. Reserve Univ., 2015 WL , at *6. Nor is there any relevance to Doe s allegations of favorable treatment of her as the respondent on his claims of misconduct against her: the allegations were entirely dissimilar (Doe did not accuse her of engaging in nonconsensual sex); she no longer was a student at the College when she slapped Doe, and thus her violation of College policies did not subject her to expulsion; and, unlike Doe, she had no history of significant conduct violations. 2. Deliberate indifference A Title IX claim for deliberate indifference arises in the context of alleged sexual harassment. Doe v. Brown Univ., 166 F. Supp. 3d 177, 191 (D.R.I. 2016) (citing Marshall v. Ohio Univ., No. 15-cv-775, 2015 WL , at *8 (S.D. Ohio Mar. 13, 2015)). To establish a Title IX deliberate indifference claim, a plaintiff must demonstrate that [a school] official with authority to address the alleged discrimination and take corrective measures had actual knowledge of the misconduct and failed to adequately respond to that misconduct. Doe v. Trs. of Boston Coll, 2016 WL , at *26. The university s deliberate indifference must also cause the student to face sexual harassment or become vulnerable to such harassment. Id. The alleged victim also has a burden to show that [the school] officials response or inaction was clearly unreasonable given the known circumstances. Id. The Complaint fails to state a claim of deliberate indifference to any alleged sexual harassment of Doe. The Complaint alleges that the College did not promptly investigate Doe s allegations of misconduct against Smith, which the College learned about when Doe s attorney blind-copied Dean Sarah Bolton on a cease and desist letter to Smith. Compl. 68. Although the March 13, 2016 letter accused Smith of harassing Doe, the letter did not say or suggest that Smith s alleged conduct involved sexual harassment. See Cease & Desist Letter (Dkt. No. 1-8). Moreover, when Doe first asserted an actual Title IX complaint his attorney s April 13,

15 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 15 of 39 letter to the Title IX Coordinator, Dkt. No. 1-9 the College was not deliberately indifferent. The College promptly responded, commenced a full investigation, and conducted a disciplinary hearing in which Smith was found responsible for slapping Doe and disciplined accordingly. See Compl. 79, 82; Investigation Rpt. (Kelly Decl. Exh. A); Decision Letter (Kelly Decl. Exh. B); Sanction Letter (Kelly Decl. Exh. C). Having promptly investigated and adjudicated Doe s claims against Smith, the College as a matter of law was not deliberately indifferent to them. See Keskinidis v. Univ. of Massachusetts Boston, 76 F. Supp. 3d 254, 260 n. 3 (D. Mass. 2014) (deliberate indifference to sexual harassment not shown where a trained investigator conducted an investigation and prepared a report provided to the university and complainant). 3. Erroneous outcome The crux of Doe s erroneous outcome claim is whether his gender was a motivating factor in the Hearing Panel s determination that he violated the College s sexual misconduct policy and that he should be expelled as a result. See Yusuf, 35 F.3d at 715. Merely alleging that procedural or other flaws in the proceedings led to an erroneous outcome, coupled with a conclusory allegation of gender bias, is not enough. Id. To state a claim under Title IX, Doe must allege particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding, such as statements by members of the disciplinary panel or other relevant college officials that exhibit gender bias or decision-making patterns that tend to show the influence of gender. Id. 4 ; see also Doe v. Trs. of Boston Coll., 2016 WL , at *24. 4 The Second Circuit recently adopted a more lenient pleading standard, in which allegations supporting a minimal plausible inference of gender bias can suffice, based on its decision to apply the McDonnell Douglas burdenshifting framework for Title VII employment discrimination claims to student disciplinary cases arising under Title IX. Doe v. Columbia Univ., 831 F. 3d 46, 55 (2d Cir. 2016). This minimal plausible inference standard, however, has not been and likely will not be adopted in the First Circuit in the context of student disciplinary proceedings under Title IX. See Cohen v. Brown Univ., 991 F.2d 888, 902 (1st Cir. 1993) (rejecting application of McDonnell Douglas framework to Title IX claim involving alleged discrimination in athletic opportunities); see also Austin v. Univ. of Ore., No. 6:15-CV MC, 2016 WL , at *9 (D. Or. Sept. 8, 2016) (declining to follow Columbia in a Title IX case involving student discipline). Moreover, unlike the plaintiff in Columbia, Doe has 6

16 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 16 of 39 The Complaint contains no such allegations. Doe alleges no statement by any member of the Hearing Panel, or any other Williams official, which exhibits any bias against men in relation to allegations of sexual assault or otherwise. Nor does Doe cite any statistics that would tend to show gender bias was a factor in the outcome of his case, such as statistics showing that men accused of sexual misconduct are found responsible in numbers disproportionate to the findings against female students accused of similar misconduct. See Doe v. Cummins, WL , at *14. Moreover, Doe s conclusory allegations of anti-male bias are patently implausible where two of the three Panel members are male, Compl. 162, and the Panel refrained from finding Doe responsible for additional conduct violations, notwithstanding its conclusion that he had acted inappropriately. See Decision Letter (Kelly Decl. Exh. B) at 1-2. Cf. Doe v. Cummins, 2016 WL , at *14 (claim that gender bias resulted in men invariably losing sexual misconduct cases was belied by the fact that plaintiffs themselves were found not responsible on some charges). II. COUNT II FAILS TO STATE A CLAIM FOR BREACH OF CONTRACT. It is well settled that a private college s handling of student discipline is entitled to considerable deference, including the college s interpretation and application of its own rules. Havlik v. Johnson & Wales Univ., 509 F.3d 25, 35 (1st Cir. 2007); Kiani v. Trs. of Boston Univ., No. 04 cv 11838, 2005 WL , at *6-7 (D. Mass. Nov. 10, 2005); Dinu v. Pres. and Fellows of Harvard Coll., 56 F. Supp. 2d 129, (D. Mass. 1999); Guckenberger v. Boston Univ., 957 F. Supp. 306, (D. Mass. 1997); Schaer v. Brandeis Univ., 432 Mass. 474, 481, 735 N.E.2d 373, 381 (2000); Coveney v. Pres. & Trs. of Holy Cross Coll., 388 Mass. 16, 19-20, failed to allege any facts to support a minimal plausible inference of bias in any event. Cf. Doe v. Cummins, 2016 WL , at *13. 7

17 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 17 of N.E.2d 136, 139 (1983). The college has a contractual obligation to substantially follow its student conduct policies and procedures, as it would reasonably expect a student to understand them; to conduct its procedures with basic fairness, which means providing the student with notice of the charge against him and a meaningful opportunity to respond; and to reach a decision that has some rational basis, i.e., one that is not arbitrary and capricious. See Cloud v. Trs. of Boston Univ., 720 F.2d 721, 724 (1st Cir. 1983); Schaer, 432 Mass. at 478, 735 N.E.2d at 378; Coveney, 388 Mass. at 19, 445 N.E.2d at Where, as in this case, a college s disciplinary process meets that test, the outcome is not subject to judicial challenge. See id. In addition, as discussed just below, a student cannot bring a breach of contract claim unless he first has exhausted the procedures available to him under the College s policies. A. Doe Has Failed to Exhaust His Contractual Remedies. The College s procedures afford Doe the right to appeal the decision in his case on the basis of significant procedural lapses or newly available evidence that could materially impact the outcome of his case. Compl. 175; Sexual Misconduct Policy (Dkt. No. 1-11) at 15; Sanction Letter (Kelly Decl. Exh. C) at 2-3. On December 7, 2016, roughly two weeks after he filed his Complaint in this case, Doe exercised that right to appeal, which is now under review by the College s Vice President for Institutional Diversity & Inclusion. See Appeal (Kelly Decl. Exh. D). The appellate officer may deny the appeal, affirm the original disposition, or allow the appeal and remand the matter to the original Hearing Panel or a new Panel for further proceedings. See Sanction Letter (Kelly Decl. Exh. C) at 2-3. Doe s contract claim should be dismissed because he has invoked, but not yet exhausted his contractual rights including the right to appeal. Cf. Brennan v. King, 139 F.3d 258, 270 (1st 8

18 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 18 of 39 Cir. 1998) (university professor could not sue for breach of his employment contract before pursuing the grievance procedure afforded in that contract); Berkowitz v. Pres. & Fellows of Harvard Coll., 58 Mass. App. Ct. 262, 275, 789 N.E.2d 575, 585 (2003) (a contractual exhaustion requirement stems from the contractual bargain that defines the parties rights; it allows contracting parties to educate each other as to their respective conceptions of their rights, allows for an opportunity to resolve differences, and preserves scarce judicial resources). The rationale of these university employment cases is fully applicable to claims arising from student disciplinary proceedings and Doe s contract claim should be dismissed on this basis alone. B. The College Has Followed its Policies and Procedures. Doe s Complaint, at 228, 262, alleges a litany of supposed procedural violations, none of which has merit. As to each issue, the allegations fail to state a claim that the College failed to follow its procedures as it reasonably would expect Doe to understand them. See Schaer, 432 Mass. at 478, 735 N.E.2d at 378 (quoting Cloud, 720 F.2d at 724); see also Walker v. Pres. & Fellows of Harvard Coll., 840 F.3d 57, 62 (1st Cir. 2016); Doe v. Trs. of Boston Coll., 2016 WL , at *9. 1. There is no evidence of bias or disparate treatment. The College s sexual misconduct policy calls for a prompt, fair, and impartial investigation and resolution of complaints of sexual misconduct. Dkt. No at 12. Doe alleges that the College breached its contractual obligations to him because he was subjected to a disciplinary process that was biased in favor of females and because he was treated in a highly disparate manner. Compl. 228a & c. Doe s conclusory allegations of gender bias are without merit for the reasons discussed in Section I.B. above. As other evidence of supposed bias, Doe points to the alleged conduct of Dean Sarah 9

19 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 19 of 39 Bolton, who was Dean of the College (effectively Dean of Students ) at Williams. See Pl. Mem (Dkt. No. 6) at 6. Doe criticizes Dean Bolton s handling of the honor code complaint against him, i.e., Smith s allegation that she wrote certain papers on Doe s behalf, Compl. 43, Dean Bolton s communication with Smith about the outcome of that complaint, id , 88, Dean Bolton s response to the cease and desist letter that Doe s attorney sent to Smith with a blind copy to Dean Bolton, id , 101, Dean Bolton s issuance of a no-contact order, id , Dean Bolton s purported encouragement of Smith to lodge a counter-complaint against Doe, id. 93, and Dean Bolton s response to Smith s seeking certain accommodations, id Most of these allegations of bias concern the honor code matter, as to which Doe ultimately was exonerated and suffered no consequences. Id. at 87. Those allegations do not support a breach of contract claim in relation to Doe s expulsion for engaging in nonconsensual sex. See Dempsey v. Bucknell Univ., 76 F. Supp. 3d 565, 585 (M.D. Pa. 2015), amended in part, No. 4:11-CV-1679, 2015 WL (M.D. Pa. Mar. 6, 2015), aff d, 834 F.3d 457 (3d Cir. 2016) (alleged defects in a proceeding in which a student was exonerated were inapplicable to breach of contract claims arising from a finding of responsibility in a separate proceeding). Moreover, Doe admits that as of June 30, 2016, Dean Bolton left the College to become the President of another college; she had no role in the hearing which occurred several months later, on October 22, 2016; she was not a witness during the investigation; and she was not a fact finder or decision maker with respect to the outcome of the proceeding. Compl. 21, 162; Investigation Rpt. (Dkt. No. 1-13) at 1-2. See Doe v. Cummins, 2016 WL , at *11 (a dean s alleged bias during a preliminary investigation was not actionable where a hearing panel made the ultimate decision). 10

20 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 20 of 39 In addition, none of Dean Bolton s alleged actions involve any evidence of actual bias. See Gorman v. Univ. of Rhode Island, 837 F.2d 7, 15 (1st Cir. 1988) ( Alleged prejudice of university hearing bodies must be based on more than mere speculation and tenuous inferences. ); Ikpeazu v. Univ. of Nebraska, 775 F.2d 250, 254 (8th Cir. 1985) (university disciplinary officials are entitled to a presumption of honesty and integrity unless actual bias, such as personal animosity, illegal prejudice, or a personal or financial stake in the outcome can be proven ); see also Doe v. Cummins, 2016 WL , at *11; Doe v. Trs. of Boston Coll., No. 15-CV-10790, 2016 WL , at *16 (D. Mass. Oct. 4, 2016). To the contrary, the evidence is that Dean Bolton followed the College s policies in relation to the honor code proceedings, rather than departing from them to unfairly advantage Smith or disadvantage Doe. Doe complains that Dean Bolton was involved communications with Smith concerning Doe s hearing and the outcome. Compl. 46, 57, 58. Nothing about this violates Doe s reasonable expectations. The communications show that Dean Bolton was assisting Smith in gathering information for the honor code hearing and keeping her apprised of the process. See Investigation Rpt. (Kelly Decl. Exh. A) at Exhibit H(g). The College s procedures contemplate that the Dean will provide information to the hearing committee; the procedures provide that the Dean s office is available to assist witnesses such as Smith, and they provide that, as the accuser, she was entitled to know the outcome. See Honor Hearing Procedures (Kelly Decl. Exh. E) at 1. Also without merit is Doe s criticism of Dean Bolton s response to the March 13, 2016 cease and desist letter that Doe s attorney sent to Smith. Compl. 68. The letter was addressed only to Smith and it did not say that Doe was filing a complaint or seeking any accommodations under any College policy. See Cease & Desist Letter (Dkt. No. 1-8). Moreover, Doe does not 11

21 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 21 of 39 allege that he requested an investigation or adjudication of Smith s actions during his meeting with Dean Bolton the next day. Compl. 69. Equally without merit is Doe s criticism of Dean Bolton for issuing a no-contact order. Id. at 80. The College s policy expressly allows for no-contact orders, see Sexual Misconduct Policy (Dkt. No. 1-11) at 12, and Dean Bolton had every reason to issue a mutual no-contact order in light of the honor code appeal, Doe s cease and desist letter, and Smith s previous reports of problems in their relationship. Doe s allegation that Dean Bolton encouraged Smith to pursue her complaint against Doe, Compl. 93, also fails to implicate any violation of College policy. To the contrary, the College s policy is expressly to encourage the reporting of sexual misconduct. see Sexual Misconduct Policy (Dkt. # 1-11) at 12. Nor is there any evidence of bias, as Doe alleges, in Dean Bolton s response to his attorney s cease and desist letter to Smith when compared with Dean Bolton s response to Smith s October 5, , in which she disclosed problems in her relationship with Doe and requested a week off from classes. Compl. 135; Investigation Rpt. (Kelly Decl. Exh. A) at Exhibit B. There is no comparison. One is a letter from an attorney to a student, which neither requests nor references any request for action by the Dean, whereas the other is an from a student to the Dean disclosing a troubled relationship and requesting the Dean s help. See Doe v. Cummins, 2016 WL , at *11 (providing accommodations to a complainant does not evidence bias). Simply put, none of Dean Bolton s alleged conduct evidences any personal animosity against Doe, any anti-male bias, any personal or other stake in the outcome of Doe s case, or any other basis for his claim of bias and disparate treatment. 12

22 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 22 of College policy called for the investigation of Smith s complaint. Doe alleges that the College improperly investigated and adjudicated Smith s complaint of sexual misconduct because she was an employee, not a student, when she made it and because there was not adequate evidence to proceed. Compl. 228b. Neither claim has any merit. The College s policy expressly encourages [a]ny person who experiences [sexual misconduct], not just students, to report it. See Sexual Misconduct Policy (Dkt. No. 1-11) at 12. Doe had no reasonable expectation that he could sexually assault a College employee with impunity. Nor did the College s policies give Doe any reasonable expectation that some different or additional evidence was needed for the College to investigate and adjudicate Smith s complaint. The policy contains no probable cause standard or the like, nor does it require any threshold evaluation prior to an investigation. Moreover, the very fact that Doe was found responsible, by a preponderance of the evidence, confirms that the College had good reason to go forward with Smith s complaint. See Decision Letter (Kelly Decl. Exh. B) at The College did not act with deliberate indifference. Doe alleges that the College breached its contract with him by responding with deliberate indifference to his report that he had been harassed and assaulted by Smith. Compl. 228d, m, n. That claim fails for the reasons stated in section I.B.2 above. 4. The College did not breach any obligation relative to Doe s appeal in the plagiarism case. Doe alleges that Dean Bolton misinformed Doe when she told him that he could not appeal the original sanction in his plagiarism case. Compl. 228e. Dean Bolton was correct: the Honor Hearing Procedures provide that [t]he accused student may request a reconsideration of the Committee s decision [only] on the basis of substantial new evidence or improper 13

23 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 23 of 39 procedures, not as to the sanction imposed. Honor Hearing Procedures (Kelly Decl. Exh. E) at 2. Regardless, Doe did appeal and he was exonerated on all the plagiarism charges in any event. Compl The College did not violate the policy on hearing records. Doe alleges that the College capriciously applied the Honor Hearing Procedures when the Dean saved a record of the hearing. Compl. 228f. The Honor Hearing Procedures provide that [a]ll notes and documentary evidence must be left in the room and will be shredded after the hearing, save original copies of evidence to be retained by the Dean s office. Honor Hearing Procedures (Kelly Decl. Exh. E) at 1. They also provide that the committee and its officers are free to act flexibly in ways consistent with fairness, and minor variations should not be considered violations of procedures. Id. The procedures do not state that a record of the hearing may not be retained by the Dean s office. In any event, Doe has not alleged any harm arising from the fact that the Dean kept a record of the hearing; to the contrary, as noted above, Doe was exonerated on the honor code violation. 6. Doe has no claim in relation to the College s policy on relationship abuse or the general guidelines of its Code of Conduct. Doe complains that the College improperly charged him with violating its relationship abuse policy and the general guidelines of its Code of Conduct, and that the College deprived him of an opportunity to respond to these charges. Compl. 228g-i. Even if these allegations were true, which is not the case, they do not support a breach of contract claim in any event. The Panel did not find Doe in violation of either the relationship abuse policy or the general guidelines of the Code of Conduct. Id. 164; Decision Letter (Kelly Decl. Exh. B) at 2. 14

24 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 24 of The College did not violate any policy by requesting that Doe not attend a dance team performance. Doe includes among his procedural arguments a claim that the College discriminated against him and denied him an educational opportunity by asking him not to participate in a dance team performance that Smith was coordinating and for which she would be present. Compl. 78, 228j. As discussed above, the Dean had issued mutual no-contact orders in accordance with College policy. Not surprisingly, Doe fails to identify any violation of his contractual rights arising from the instruction to abide by the no-contact order. Moreover, the fact that Doe was asked to refrain from participating in a single dance competition is not a cognizable depravation of an educational opportunity. Cf. Laney v. Farley, 501 F.3d 577, 581 (6th Cir. 2007) (one-day suspension involved no deprivation of educational opportunity). 8. The College did not breach any obligation to provide transcripts. Doe alleges the College breached its contract by failing to follow through on a promise to provide him transcripts of witness interviews. Compl. 228k. Nothing in the applicable policy provides that respondents in sexual misconduct cases are entitled to interview transcripts. See Sexual Misconduct Policy (Dkt. No. 1-11). Nor does an isolated statement by one college administrator operate to change the policy. See Doe v. Trs. of Boston Coll., 2016 WL , at *10. Moreover, the College timely informed Doe s counsel that while he had no right to receive a copy of the transcripts, he would be permitted to inspect them pursuant to a request under the Family Educational Rights and Privacy Act (FERPA). Compl That statute permits students such as Doe to inspect and review, but generally not to receive copies of, records maintained by an educational institution to the extent those records directly relate to the student. See 20 U.S.C. 1232g(a)(1)(A) & 1232g(a)(4)(A); 34 C.F.R Protecting the confidentiality of sexual misconduct proceedings in this manner is entirely consistent not 15

25 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 25 of 39 only with FERPA but also College policy; as a result, Doe could not reasonably expect that he had a right to receive copies of the transcripts. Cf. Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 598 n.26 (D. Mass 2016) ( An accused student might not necessarily be permitted to retain a copy of the [Investigation] Report, as opposed to simply having access to it. ). 9. The College did not breach any obligation of confidentiality. Doe alleges that the College violated its policy of confidentiality and its obligation to comply with FERPA when Dean Bolton disclosed information to Smith during the honor code hearing. Compl. 228l. As discussed in section II.B.1 above, Dean Bolton s communications with Smith were entirely in accordance with the Honor Hearing Procedures. Nor did FERPA prohibit Dean Bolton from sharing information with Smith about the plagiarism case in which she was the accuser. Doe identifies no confidential student information about him that was disclosed much less how he might have been harmed as a result. FERPA creates no private right of action in any event. Gonzaga Univ. v. Doe, 536 U.S. 273, 276 (2002). 10. The College did not violate any obligation relative to hiring the investigator or the investigator s report. Doe alleges that the College hired its independent investigator without his input. Compl. 228o. Of course it did. Nothing in the applicable policy provides that respondents are allowed input into the College s hiring of investigators. See Sexual Misconduct Policy (Dkt. No. 1-11). Doe goes on to allege that the investigator prepared a biased report in which she made errors in applying the College s policies, improperly cited a Dean as a witness, used the term testify when referring to Smith s statements, and did not investigate Doe s discrimination complaint against the College. Compl. 228o. None of these claims involves any actionable departure from College policies. Doe s conclusory claim of bias is merely that; he fails to allege any specific facts to support it. The investigator properly cited Assistant Dean Rosanna Reyes as 16

26 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 26 of 39 a witness, as Smith had identified her as a witness in connection with the incidents in October 2014 and January 23, Investigation Rpt. (Kelly Decl. Exh. A) at Additionally, the investigator s use of the word testified, when referring to Smith s statements at Doe s honor hearing, is entirely appropriate. Id. at 35. To testify simply means to give evidence as a witness. Black s Law Dictionary (Thomson West 8th ed.). Nor was the investigator responsible for investigating Doe s allegation of disparate treatment/deliberate indifference by Dean Bolton. The College s sexual misconduct policy provides for the investigation of violations of that policy; it does not say or suggest that the investigator will investigate an allegation about the investigation. See Sexual Misconduct Policy (Dkt. No. 1-11) at The College did not violate its policies concerning disclosure of the investigation report and the responses to it. Doe and Smith were given the Investigation Report and afforded an opportunity to respond in writing before the final Report, and their responses, went to the Hearing Panel. Compl. 129, 136, 154, 163. Doe complains that he never received a copy of the final Report. Compl. 228p. Nothing in the College s policy provides for delivery of the final report. Moreover, a redline comparison of the final report to the one Doe received demonstrates that it included only a handful of minor revisions, none of them substantive. See Redline (Kelly Decl. Exh. F). Doe has not alleged any harm from the revisions or from the fact that he never saw them. (This is hardly surprising, since the only revisions were made at his attorney s request.) Doe also complains that he never received Smith s second response to the Investigation Report. Compl. 228p. Nothing in the policy requires that the complainant or respondent receive the other s response. See Sexual Misconduct Policy (Dkt. No. 1-11). 17

27 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 27 of The panel applied the correct standards in determining whether Doe engaged in non-consensual sexual intercourse. Doe alleges that the College violated its policies by failing to apply the preponderance of the evidence standard, by failing to apply the correct version of its policy on non-consensual sexual intercourse, and by finding Doe responsible without adequate evidence based on the mere credibility of Smith s account. Compl. 228q, 262u. None of these claims has merit. The Panel applied the correct, preponderance of the evidence standard when it found more likely than not that Doe engaged in non-consensual sexual intercourse. Compl. 166; Decision Letter (Kelly Decl. Exh. B) at 2. Moreover, there was ample evidence to support that finding. Smith alleged that while she was lying face down in bed, Doe penetrated her from behind, a position they never started in a fact that he conceded. Investigation Rpt. (Kelly Decl. Exh. A) at Smith alleged that she gave no indication that she wanted to have sex, whereas she and Doe always talked about having sex before beginning any sexual activity, and Doe conceded that Smith almost always initiated sexual activity. Id. at Smith testified that Doe forced himself on her and had sex when she did not want to consistent with what she told at least two corroborating witnesses. Id. at 13. While Doe denied that he acted without Smith s consent, ultimately the Panel found her to be credible. Decision Letter (Kelly Decl. Exh. B) at 2. See also Doe v. Trs. of Boston Coll., 2016 WL , at *19 ( The fact that the case was a circumstantial one, or even a close circumstantial case, however, does warrant the conclusion that there was insufficient evidence to reach the conclusion that the board reached. ); Yu v. Vassar Coll., 97 F. Supp. 3d 448, 462 (S.D.N.Y. 2015) (declining to second guess credibility determinations); Doe v. Univ. of the South, 687 F. Supp. 2d. at 755 (it is not for the court to review whether a sexual assault occurred, whether any such acts were consensual, or who, as between John Doe and the Complainant is credible ). 18

28 Case 3:16-cv MAP Document 32 Filed 12/22/16 Page 28 of 39 Doe s allegations that the Panel failed to consider that Smith s corroborating witnesses were her friends, Compl. 173, that he and Smith were in a long term relationship, id. at 174a, h, or that Smith purportedly lied to the investigator, id. at 174e, are pure conjecture and entirely implausible at that. The Investigation Report identified the corroborating witnesses as Smith s witnesses, see Investigation Rpt. (Kelly Decl. Exh. A) at 2, 13, and Doe s response highlighted that they were Smith s friends who, according to Doe, were improperly influenced. Response to Report (Dkt. No. 1-15) at The Investigation Report also contained a detailed history of the parties longstanding relationship, Investigation Rpt. at 1-38, including detailed accounts of their sexual encounters, id. at The record shows that the Hearing Panel reviewed the Investigation Report and Doe s response. See Decision Letter (Kelly Decl. Exh. B) at 1. Doe s claim that Smith lied to the investigator is also unsupported. The Report indicates that Smith admitted to the Investigator that she had accessed Doe s Facebook and told Lady Doe about it. Investigation Rpt. (Kelly Decl. Exh. A) at 19. Doe s attempt to point out inconsistencies in Smith s account is also insufficient. Compl. 174c. Doe does not state a claim for breach of contract merely by picking out facts he thinks the Panel should have weighed differently. Doe s claim that the College erred by applying the wrong version of its sexual misconduct policy also provides no basis for his breach of contract claim. Compl Assuming for the sake of argument that the Panel applied a version of the policy that came into effect only after the incident at issue, the new version did not differ in substance from the old one. The Code of Conduct in effect in September 2014, when the incident at issue took place, provided as follows: Non-Consensual Sexual Intercourse: Any sexual intercourse (anal, oral or vaginal); however slight; with any object; by a man or a woman upon a man or a 19